Scott v. Millers Mut. Fire Ins. Co. of Texas

• Decision Date: 04 June 1975
• Docket Number: No. B--4891,B--4891
• Citation: 524 S.W.2d 285
• Parties: J. C. SCOTT, Petitioner, v. The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Respondent.
• Court: Texas Supreme Court

Page 285

524 S.W.2d 285

J. C. SCOTT, Petitioner, v. The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Respondent.

No. B--4891.

Supreme Court of Texas.

June 4, 1975.

Rehearing Denied July 9, 1975.

Ken T. Miller, Tyler, for petitioner.

Ramey, Flock, Hutchins, Grainger & Jeffus, Jack W. Flock and Mike A. Hatchell, Tyler, for respondent.

WALKER, Justice.

On the principal question to be decided in this workmen's compensation case, we hold that the evidence supports the finding of the jury that the claimant's injury was received in the course of his employment.

J. C. Scott, petitioner, was injured on February 6, 1970, while on the premises of his employer, Bloch Metals, Inc., of Tyler. He brought this suit against Bloch's insurance carrier, respondent here, to recover workmen's compensation benefits. The trial court rendered judgment in his favor on the verdict for total and permanent disability, medical expenses, interest and costs. The Court of Civil Appeals concluded, with one justice dissenting, that there is no evidence to support the jury's finding in response to Special Issue No. 3 that petitioner's injury was sustained in the course and scope of his employment. The judgment of the trial court was accordingly reversed, and judgment was rendered that petitioner take nothing. Tex.Civ.App., 513 S.W.2d 246. We reverse the judgment of the Court of Civil Appeals and remand the cause to that court for consideration of certain other points of error brought there by respondent.

There is no direct evidence of how petitioner was injured or what he was doing at the time. He was employed by Bloch primarily as a metal or paper sorter. The premises utilized by Bloch in its operations consisted of: (1) a warehouse where paper and metal were unloaded, bundled and stored, and (2) a scale house where incoming and outgoing shipments were weighed. The warehouse, which was located across the street from the scale house, was divided into two sections called the metal house and the paper house. Petitioner worked principally in the paper house.

For bookkeeping and pay purposes, the work week at Bloch began on Friday and ended on Thursday. Ordinarily no work was done on Saturday and Sunday. Petitioner was injured on Friday. There is evidence that he left home that morning around 6:30 a.m.; and he was seen in the warehouse on the Bloch premises about 7:30 a.m. by Delmar Kelly, a fellow employee. Petitioner helped Kelly start a forklift truck for use by Kelly in connection with his duties. The truck caught on fire, and petitioner attempted to put out the fire with a fire extinguisher. He was unable to do so, and the Tyler Fire Department was called to extinguish the blaze.

There is testimony from two other Bloch employees, Hinson and Gormley, that petitioner was seen standing around the scale house a few minutes before 7:00 a.m. and again at about 8:00 a.m. The time clock on which employees punched in and out was on the outside of the scale house, and employees customarily gathered there for 25 or 30 minutes before beginning work. There is no evidence that petitioner punched in the day he was injured. The bookkeeper for Bloch testified that she had no time card for petitioner for that day. She further testified that the clock did not always work and that employees did not always punch in before beginning work.

Petitioner was found 'about the middle of the morning' on the warehouse floor, wedged in between an eight-foot pile of paper bales and some barrels. He had received a severe injury to his head, was unconscious and was bleeding at the mouth, nose and ear. He has not been able to recall anything concerning his injury. He could not testify what he was doing before or at the time of his injury. He did not normally work at the place where he was found, but his duties as a metal sorter required that he occasionally 'climb up on those bales and count them.' He was not seen by any witness from 8:00 a.m. until the time he was found after being injured. Aside from petitioner's activities in helping Kelly start the forklift and attempting to extinguish the fire, the record id silent as to whether he did any work for his employer that morning. It is silent as to whether he was working just prior to the time he was injured, and there is no direct evidence of the cause of his injuries.

There is testimony that petitioner had been found sleeping on top of paper bales some three or four days before he was injured and that he was sent home because he was intoxicated. Several witnesses testified that petitioner smelled of alcohol, staggered when he walked, and was drunk when they saw him at the scale house around 8:00 o'clock Friday morning. One witness further testified that he found a whiskey bottle on top of the bales above where petitioner was lying after he was injured. On the other hand, there is evidence from two witnesses that would support the conclusion that petitioner had done no drinking the morning he was injured.

To show that his injuries were sustained in the course of employment, it was incumbent upon petitioner to establish that they had to do with and originated in the work of his employer and were received by him while engaged in or about the furtherance of the employer's affairs or business. See Art. 8309, § 1, Vernon's Ann.Civ.St.; Texas General Indem. Co. v. Bottom, Tex.Sup.,365 S.W.2d 350. As respondent points out, there is no direct evidence here that plaintiff 'punched in' and commenced his regular duties, or that he was performing any work for his employer when injured, or that the cause of his injury originated in and had to do with his work for Bloch. Petitioner argues that he is entitled to the benefit of a presumption that he was injured in the course of employment.

When an employee is found dead at a place where his duties require him to be, or where he might properly have been in the performance of his duties, during the hours of his work, it has been said that in the absence of evidence that he was not engaged in his master's business, there is presumption that the accident arose out of and in the course of the employment within the meaning of the compensation statute. See Elledge v. Great Am. Indem. Co., Tex.Civ.App., 312 S.W.2d 722 (wr. ref. n.r.e., 159 Tex. 288, 320 S.W.2d 328); American General Ins. Co. v. Jones, Tex.Civ.App., 250 S.W.2d 663 (reversed on other grounds, 152 Tex. 99, 255 S.W.2d 502); Associated Emp. Lloyds v. Wiggins, Tex.Civ.App., 208 S.W.2d 705 (wr. ref. n.r.e.); 1 Larson's Workmen's Compensation Law, § 10.32; Annotation, 120 A.L.R. 683. Petitioner insists that the presumption should arise in a case such as this where, through loss of memory, the claimant is unable to recall the details of the accident. Respondent argues that there is no 'presumption' of course and scope of...